Shahbal, Buxton Developers Secure Major Court Victory as Appeal Judges Throw Out Contempt Case

The Court of Appeal has overturned a High Court decision that threatened senior figures behind Mombasa’s multibillion-shilling Buxton redevelopment with contempt proceedings, ruling that the trial judge strayed beyond the dispute placed before him and punished parties without sufficient evidence.

In a unanimous judgement, Justices Asike-Makhandia Murgor, Kibaya Imaana Laibuta, and Grace Ngenye-Macharia allowed an appeal by Buxton Point Apartments Ltd, businessman Suleiman Shahbal and Roton Construction Company Ltd, bringing to an end a bitter legal battle arising from the demolition of Buxton Filling Station during the redevelopment of the former Buxton Estate.

The dispute traces its roots to October 2021.

Abdullahi Ahmed Gele, trading as Buxton Filling Station, moved to the Environment and Land Court after alleging developers unlawfully demolished his petrol station, fenced the property and continued excavation despite pending court proceedings.

He maintained that he lawfully occupied Parcel No. Mombasa/Block XVII/1443, where the station had operated before redevelopment works began.

Soon after filing the petition, Gele obtained interim status quo orders.

The court directed that nothing should happen on the disputed property pending further directions. Construction, subdivision, and alienation were expressly prohibited while the case remained alive.

Yet Gele later returned to court with graver accusations.

Ignored Court Orders

He alleged the developers ignored the orders altogether. According to him, they continued fencing the land, digging foundations and pressing ahead with construction despite having full knowledge of the court’s directives.

He consequently sought contempt findings against company directors and senior county officials, including former Mombasa Governor Hassan Joho, alongside hefty fines and possible jail terms.

The developers painted a sharply different picture.

They argued the disputed parcel no longer legally existed after consolidation into a different title.

They further maintained that all construction was occurring on another parcel developed under a lawful affordable housing partnership.

Most importantly, they argued Gele never produced independent survey evidence proving construction had occurred on the land claimed in his petition.

The Environment and Land Court nevertheless partially sided with Gele.

Although the judge stopped short of formally convicting anyone for contempt, he found there had been disobedience of court orders.

He summoned the developers to appear personally and explain compliance with later court directives while also ordering a site visit.

That unusual approach became the appeal’s central battleground.

Before the Court of Appeal, the developers argued the trial judge committed a basic legal error.

They insisted he never conclusively determined whether contempt had actually been proved before issuing coercive summons against them.

They also argued the alleged orders were unclear, had partly lapsed, and were unsupported by evidence showing construction occurred on Gele’s property.

The appellate judges agreed.

Contempt Proceedings

Their judgement carefully restated that contempt proceedings occupy a unique place in Kenyan law because they are quasi-criminal.

Although filed within civil proceedings, they may lead to imprisonment or severe financial penalties.

Consequently, allegations must be proved to a standard higher than the ordinary balance of probabilities.

The judges emphasised that four ingredients must ordinarily be established.

There must be a clear court order. The alleged contemnor must know about it. There must be an actual breach.

Finally, that breach must be deliberate and wilful. Mere suspicion, uncertainty, or inference cannot substitute strict proof.

The court then identified what it called the trial judge’s “fundamental misdirection”.

According to the appellate bench, the contempt application before the Environment and Land Court concerned only alleged breaches of the status quo orders issued in October and December 2021.

Instead of deciding that precise question, however, the judge shifted attention to compliance with fresh orders issued on May 9, 2022.

That shift proved decisive.

“The deviation from determining whether the status quo orders were disobeyed to ascertaining whether the orders of 9th May 2022 were disobeyed gave rise to a fundamental misdirection,” the Court of Appeal held.

Equally significant was the court’s assessment of the evidence itself.

Coercive Orders

The judges observed that the trial judge had expressly acknowledged further interrogation was necessary before concluding whether contempt existed.

Having recognised that uncertainty, they said, he could not simultaneously compel parties to appear personally under coercive orders.

“In the absence of material demonstrating disobedience, the learned judge should have concluded that the allegations of contempt of court were not proved to the required standard,” the appellate court ruled.

The judgement reaches beyond the Buxton dispute itself.

It reinforces an enduring constitutional principle that courts cannot determine disputes outside parties’ pleadings.

Even where judges suspect wrongdoing, they remain confined to deciding only the issues formally placed before them. Punishment cannot precede proof.

The ruling also lands against the backdrop of the closely watched Buxton redevelopment, one of Kenya’s flagship affordable housing projects.

READ ALSO: Court Orders Cleanshelf Supermarket to Pay Customer KSh 500,000 for Humiliation

The project has generated sustained public debate over land rights, relocation of former occupants, and transparency in implementation, making litigation surrounding the site especially significant.

Ultimately, the Court of Appeal allowed the appeal in full.

It set aside the Environment and Land Court’s ruling, dismissed Gele’s contempt application, and awarded costs to the developers both in the trial court and on appeal.

PAY ATTENTION: Reach us at info@gotta.news.